Synopsis of Rule of Law. Courts apply a two-part test for determining the applicability of the discretionary function exception to the Federal Tort Claims Act (“FTCAâ€). Courts must ask: (1) Whether the challenged action was a discretionary one—i.e., governed by mandatory statute, policy, or regulation. If not, it is not excepted. (2) Whether the challenged action is of the type Congress meant to protect—i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis. It is the government’s burden to demonstrate the applicability of the discretionary function exception to the FTCA.
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If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.
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Issue. Whether the discretionary function exception bars an FTCA action against the government in failing to follow through on safety procedures designed to safeguard the health of employees.
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Held. No. The Supreme Court has prescribed a two-part test for determining the applicability of the discretionary function exception. Courts must ask: (1) Whether the challenged action was a discretionary one—i.e., governed by mandatory statute, policy, or regulation. If not, it is not excepted. (2) Whether the challenged action is of the type Congress meant to protect—i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis. It is the government’s burden to demonstrate the applicability of the discretionary function exception. Applying the first prong to plaintiff’s case, the court found that no statute, policy, or regulation prescribed the specific manner in which the commissary was to be inspected or the course of conduct for addressing mold. Thus, the dispute in this case turned on the second prong. The court found that precedent has established that the design of a course of governmental action is shielded by the exception, whereas the implementation of that course of action is not. In addition, matters of scientific or professional judgment (particularly regarding safety) are rarely considered to be susceptible to social, economic, or political policy. The court reasoned that the plaintiff did not allege that the government was negligent in designing its safety inspection procedures; rather, that the government was negligent in following through on those procedures to safeguard the health of employees. Accordingly, plaintiff’s action was not barred by the discretionary function exception because neither prong was met.
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Discussion. The FTCA essentially waives the federal government’s immunity from tort suits, but does not do so completely, as this case demonstrates. Congress retained federal immunity for discretionary functions, which “marks the boundary between Congress’ willingness to impose tort liability on United States and its desire to protect certain governmental activities from exposure to suit by private individuals.â€Â The exception prevents judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy.